AS TO THE ADMISSIBILITY OF

                      Application No. 12855/87
                      by H.
                      against Austria


        The European Commission of Human Rights sitting in private
on 13 October 1988, the following members being present:

              MM. C.A. NØRGAARD, President
                  J.A. FROWEIN
                  S. TRECHSEL
                  F. ERMACORA
                  E. BUSUTTIL
                  A.S. GÖZÜBÜYÜK
                  A. WEITZEL
                  J.-C. SOYER
                  H.G. SCHERMERS
                  H. DANELIUS
                  J. CAMPINOS
             Sir  Basil HALL
             MM.  F. MARTINEZ
                  C.L. ROZAKIS
             Mrs.  J. LIDDY

             Mr.  H.C. KRÜGER Secretary to the Commission

        Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 19 March 1987
by H. against Austria and registered on 10 April 1987 under file No.
12855/87;

        Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts submitted by the applicant may be summarised as
follows:

        The applicant, an Austrian citizen born in 1909, is a
pensioner.  Her current place of residence is unknown to the Austrian
authorities.  Before the Commission the applicant is represented by
Dr.  R. Stöhr, a lawyer practising in Vienna.

I

        On 19 March 1981 criminal investigations (Voruntersuchung)
were instituted by the investigating judge at the Vienna Regional
Court (Landesgericht) against the applicant who was suspected of
receiving stolen goods (Hehlerei) according to S. 164 paras. 1 (2)
and (3) of the Austrian Penal Code (Strafgesetzbuch).  The applicant
had allegedly withdrawn approximately 8 million AS from a bank account
in Zurich/Switzerland appertaining to her nephew, Mr.  A.W., who had
acquired this amount by illegal means.  A warrant of arrest was issued
against the applicant on the same day.  When the warrant of arrest was
served on the applicant, she could not be found at her address in
Vienna.

        The applicant's representative filed an appeal (Beschwerde)
against the warrant of arrest, which was dismissed by the Review
Chamber (Ratskammer) at the Vienna Regional Court on 15 June 1981.
The Chamber considered that the monies on A.W.'s bank account
originally stemmed from commission fees which were in fact bribes
(Schmiergelder).  A.W. had received these monies as a result of
distributing orders (Auftragsvergabe) during the construction of the
Vienna General Hospital (Allgemeines Krankenhaus).  In July and August
1980 the applicant had, on the basis of a power of attorney of A.W.,
brought about the sale of precious metals and securities in A.W.'s
deposit in the Zurich bank.  The proceeds were placed in a bank
account in the same bank from which the applicant then withdrew 8
million AS.  From another bank account she had withdrawn 9000.-DM.

        The Review Chamber further considered that claims
(Forderungen) also fell under S. 164 since this provision did not
presuppose identity of object.  Rather, it was the sum of the value of
the claims which was relevant.

        The applicant's appeal against this decision was dismissed by
the Vienna Court of Appeal (Oberlandesgericht) on 17 August 1981.

        The General Procurator's Office (Generalprokuratur) then filed
with the Supreme Court (Oberster Gerichtshof) a plea of nullity for
safeguarding the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes).
On 7 June 1982 the Supreme Court partly granted the plea of nullity.

        The Supreme Court observed in particular that the offence of
receiving stolen goods under S. 164 of the Penal Code covered not only
identical objects (Sachhehlerei) but also substitute objects
(Ersatzhehlerei).  The applicant was suspected of having committed, in
Switzerland, the offence of receiving substitute stolen goods.  As
this offence was not punishable under Swiss law, the applicant could
not be prosecuted therefor in Austria, and the impugned decisions
were unlawful in this respect.

        Nevertheless, in the Supreme Court's view it could not be
excluded that the applicant had already in Austria initiated
(eingeleitet) the offence which she later carried out in Zurich, and
that she had aided A.W. when he committed the offence.  The Supreme
Court concluded that the criminal investigations against the applicant
should be continued.

        On 29 June 1982 the investigating judge at the Vienna Regional
Court revoked the warrant of arrest of 19 March 1981.  At the same
time he decided to continue the criminal invgestigations against the
applicant on other grounds.  In particular, the latter was suspected
of having withdrawn 9,000.-DM from A.W.'s bank account in Zurich, thus
having committed the offence of receiving stolen goods within the
meaning of S. 164 para. 1 (2) of the Penal Code.  The applicant was
also suspected of having initiated in Austria the offence of receiving
stolen goods in Switzerland amounting to 8 million AS.  Finally, she
was suspected of having aided A.W., in Austria, in committing various
offences.

        The appeal of the applicant's lawyer against this decision was
dismissed on 20 August 1982 by the Review Chamber at the Vienna
Regional Court, which confirmed the new grounds of suspicion referred
to by the investigating judge.  A further appeal was rejected by the
Vienna Court of Appeal on 28 September 1982 which considered that the
previous decision was final.

        On 13 October 1982 the investigating judge decided to
terminate or provisionally suspend (einzustellen bzw. vorläufig
abzubrechen) the criminal investigations against the applicant
according to S. 412 of the Code of Criminal Procedure (Strafprozess-
ordnung) on the ground that the accused's place of residence was
unknown.  The applicant's lawyer claims that this decision was only
served on him two years later, i.e. on 10 October 1984.

        On 2 October 1983 the applicant's lawyer wrote to the Zurich
bank and requested copies of the applicant's instructions to that
bank.  According to an article published in October 1983 in an Austrian
magazine which dealt with the criminal proceedings against the
applicant, a Public Prosecutor told the reporter that letters of banks
did not constitute evidence since banks had the duty to protect their
clients.  The reporter was apparently also told that the proceedings
against the applicant were to be terminated.

        The bank in Zurich supplied the requested information on
24 October 1983.  The letter was signed by the bank employees A. and
Sch.  According to the letter, the applicant submitted a power of
attorney, signed in Zurich on 25 April 1980, for a certain bank
deposit and a certain bank account.  On the basis thereof, she
withdrew in Zurich in July and August 1980 the sums of 540,000.-,
415,000.- and 42,376.50, i.e. altogether 997,376.50 Sfr.

        The applicant's lawyer wrote on 18 November 1983 to the Vienna
Regional Court and requested the investigating judge to terminate the
proceedings or, alternatively, to verify the bank documents of the
bank concerned, in particular by hearing the bank employees Sch. and
H.  This request was dismissed by the investigating judge on 7 May 1984,
apparently on the grounds that the criminal proceedings against the
applicant had already been suspended under S. 412 of the Code of
Criminal Procedure.

        In his appeal against this decision the applicant's lawyer
requested the serving of the decision terminating the investigations
against the applicant which he had never received.  He further
requested that any decision taken under S. 412 should be revoked and,
instead, that the proceedings should be terminated according to S. 109
of the Code of Criminal Procedure.  S. 109 envisages termination if
the prosecuting authority finds no further grounds for prosecution.
Subsidiarily the applicant's lawyer requested the hearing of the
signatories of the bank's letter of 24 October 1983, namely A. and
Sch.

II

        On 26 September 1984 the investigating judge at the Vienna
Regional Court resumed the proceedings.  In particular, on the same
day, the judge filed with the Zurich District Attorney's Office
(Bezirksanwaltschaft) a request under letters rogatory (Rechtshil-
feersuchen) to hear the bank employees Sch., H. and A.

        On 10 October 1984 the Review Chamber at the Vienna Regional
Court rejected the appeal of the applicant's lawyer against the
decision of 7 May 1984.  The Review Chamber stated that the
proceedings against the applicant had been terminated (suspended) on
13 October 1982 on the ground that her place of residence was unknown.
A copy of this decision had meanwhile been served on the applicant
(zwischenzeitig zugestellt).  However, on 26 September 1984 the
proceedings against the applicant had again been resumed, as she was
seriouly suspected of having committed the offences concerned.

        On 3 February 1986 a Zurich District Attorney interrogated the
bank employee Sch. in Zurich.  According to the minutes, H. was then
away on holidays, and A. had only provided the second signature on the
letter of 24 October 1983.  Sch. explained that he had never met the
applicant.  On the basis of bank documents he could determine that on
25 April 1980 she had submitted a power of attorney for the deposit of
A.W.  At the same time she requested the contents of the deposit to be
sold.  She thereupon withdrew monies from a bank account as stated in
the letter of 24 October 1983.  The bank employee confirmed that the
applicant had never ordered any transactions by telephone or in
writing.  She had always done so personally at the main bank office in
Zurich.

        On 30 December 1987 the Public Prosecutor's Office requested
the investigating judge to cancel the international warrant of arrest
issued against the applicant and to terminate in part the proceedings
instituted against her to the extent that she was suspected of having
withdrawn 9,000.- DM from A.W.'s bank account.  The investigating
judge was also asked to file with the Zurich District Attorney's
Office a new request under letters rogatory in respect of the sum of
997,376.50 Sfr.

        On 3 March 1988 the Zurich District Attorney's Office heard
the bank employee H.  The latter confirmed that the bank's letter of
24 October 1983 had been correct.  Apparently, money on A.W.'s bank
account was intended for a corporation (Aktiengesellschaft) in
Liechtenstein, for A. also stated that he could not remember when the
amount of 50,000.- Sfr had been blocked in order to found such a
corporation.  Finally, H. stated that he could not remember who had
withdrawn the 9,000.- DM, though the bank's documents should show
this.

        On 11 March 1988 the applicant's lawyer sent a written
statement to the Regional Court in which he explained the origins of
the 9,000.- DM which the applicant had withdrawn.

        On 20 May 1988 the investigating judge cancelled the
international warrant of arrest issued against the applicant.  The
applicant's lawyer was also informed that the proceedings were
terminated in respect of the amount of 9,000.- DM.  Finally, the
investigating judge requested the Vienna Federal Police Direction
(Bundespolizeidirektion) to determine the whereabouts of the applicant
in Austria and to note the suspicion of having initiated in Austria
the offence of receiving stolen goods in Switzerland.

COMPLAINTS

        The applicant complains under Article 6 para. 1 of the
Convention of the length of the criminal proceedings instituted
against her.  She notes that on 29 June 1982 the investigating judge
had ordered the institution of criminal proceedings against the
applicant on the grounds that she had withdrawn 9,000.- DM from a bank
account in Zurich.  Yet in this respect no investigations have been
undertaken at all so far.  This could have been done long ago by
assessing the statements of the bank account.  Moreover, on 3 February 1986
only one bank employee was heard, and the investigating judge at the
Vienna Regional Court has since then not ordered the hearing of any
other bank employees.

        The applicant submits that in view of her age she has been
hiding (verborgen) since 1981 at a place not known to the authorities
in order to avoid detention on remand.


THE LAW

        The applicant complains of the length of the criminal
proceedings instituted against her.  She claims that the authorities
have not pursued the investigations with sufficient speed.  The
applicant submits that in view of her age she has been hiding since
1981 in order to avoid detention on remand.  She relies on Article 6
para. 1 (Art. 6-1) of the Convention which states:

"1.   In the determination of ... any criminal charge
against him, everyone is entitled to a .... hearing within a
reasonable time by an independent and impartial tribunal..."

        The Commission notes that on 19 March 1981 criminal
proceedings were instituted, and a warrant of arrest was issued,
against the applicant.  On 13 October 1982 the proceedings were
discontinued, though this decision was apparently not served on the
applicant's lawyer until 10 October 1984.  On 26 September 1984, the
investigations against the applicant were resumed.

        However, the Commission does not consider it necessary to
examine whether or not the length of these proceedings raises an issue
under Article 6 para. 1 (Art. 6-1) of the Convention, as the applicant
has been in hiding during the entire period of these investigations.
By acting in this way the applicant sought to evade justice.

        The Commission considers that, when an accused person avoids
prosecution, he or she is not entitled to complain of the unreasonable
duration of the proceedings during his or her absence, unless
sufficient reasons are given which will rebut this assumption (see
Ventura v.  Italy, Comm.  Report, 15.12.80, D.R. 23 p. 91 para. 197;
No. 9429/81, Dec. 2.3.83, D.R. 32 p. 225).

        The present applicant states as a reason for going into hiding
that in view of her advanced age she wanted to avoid detention on
remand.  However, even assuming that an alleged danger to the
applicant's health could be relevant under Article 6 para. 1 (Art. 6-1)
of the Convention, the Commission finds that the applicant has neither
made nor substantiated such an allegation.  It concludes that the
applicant has failed to rebut the above assumption.

        The applicant is therefore not entitled to complain under
Article 6 para. 1 (Art. 6-1) of the Convention of the unreasonable
length of the criminal proceedings instituted against her.  It follows
that the application is manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.


        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE



Secretary to the Commission         President of the Commission




    (H. C. KRÜGER)                       (C. A. NØRGAARD)